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PETITIONER: ARVEE INDUSTRIES & ORS.

       Vs.

RESPONDENT: RATAN LAL SHARMA

DATE OF JUDGMENT13/09/1977

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. SINGH, JASWANT

CITATION:  1977 AIR 2429            1978 SCR  (1) 418  1977 SCC  (4) 363

ACT: Civil Procedure Code (Act V of 1908), as amended with effect from  1-2-1977  by  s. 11 of the  Code  of  Civil  Procedure (Amendment Act No. 104 of 1976), 1976-Powers of the  Supreme Court to transfer suits-Section 25, scope of.

HEADNOTE: The petitioners, who reside and carry on business in  Delhi, filed suit No. 262/1974 for perpetual injunction against the landlord’s  (Respondent’s son) interfering with their  quiet and  peaceful  possession of their tenanted  premises.   The suit, having been dismissed for default, the respondent made an application u/s. 95 r/w s. 151 C.P.C. claiming Rs. 3000/- as   compensation   from  the  petitioners   for   malicious prosecution of the civil suit.  Since the written  statement filed in the said application by the petitioners was  stated to  contain several serious defamatory  allegations  against the  respondent whereby he was lowered in public esteem  and reputation,  the respondent instituted suit No. 690 of  1975 on  the  original  side of the  Calcutta  High  Court  after obtaining  ex parte leave under clause (12) of  the  Letters Patent  for the Calcutta High Court claiming Rs.  2,00,0001- as damages from the petitioners. In  the transfer petition, the petitioners contended (i)  it is a clear case of harassment of the petitioners in order to drag  them to the Calcutta High Court where  the  respondent had not to pay any court fee in instituting such a suit  for libel; (ii) Defendants reside and carry on business in Delhi and  it  will be a great hardship to defend such a  suit  by them  in  Calcutta;  and  (iii)  there  is  no  prima  facie justification to institute a suit in Calcutta and there is a clear lack of territorial jurisdiction as the publication of libel was in Delhi even according to the pleadings. Allowing the petition, the Court, HELD :(1) Section 25, Civil Procedure Code, in terms confers a  new  power  on this Court which was earlier  in  the  old section  with  the  State  Government.   Section  25  C.P.C. provides  that this Court, if satisfied that an order  under the  section  is  expedient for the  ends  of  justice,  may transfer  any case from one High Court to another or from  a civil court in one State to a civil court in another  State. [420 H, 421 A]

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(2)This  Court  is the highest Court of appeal  under  the Constitution  from all the High Courts in India.   All  High Courts  in India within the meaning of Art. 366(14)  of  the Constitution  r/w s. 3(25) of the General Clauses Act  stand on the same footing so far as the Supreme Court is concerned and  there  is  no basis for the submission  that  the  suit cannot be transferred u/s. 25, C.P.C. from the original side of the chartered High Court to the Delhi High Court or  that this Court has no jurisdiction to entertain such a  transfer application. [420 H, 421 A-D] (3)It cannot be said that if a particular suit is ex facie instituted  deliberately in a wrong Court it will  not  have any  bearing  whatsoever on the question of  transfer.   The Court may bear it as an additional factor if there is  prima facie, on the pleadings sufficient justification for such  a plea. [421 F] (4)The fact that the plaintiff will be greatly handicapped in several ways in being deprived of the procedure extant in Calcutta High Court is not an impediment u/s 25(5) C.P.C. in the  matter of entertainment of the petition of transfer  by this Court. [422 B] (5)What  is  expedient  for the ends of  justice  u/s.  25 C.P.C. will have to be judged upon the totality of facts and circumstances in a given case.  The 41 9 instant case is a fit one where it is expedient for the ends of justice to transfer suit No. 609 of 1975 on the  original side  of  the Calcutta High Court to the Delhi  High  Court. Having an overall view of the case, the relationship between the  parties,  the  nature  of  the  suit  as  well  as  the circumstances  in  which  the suit has  been  filed  in  the Calcutta  High Court, great hardship will be caused  to  the petitioners   in   defending  such  a  suit   in   Calcutta. Convenience  of  the parties for a smooth and  speedy  trial will be more in Delhi.  Since the cause of action has arisen out  of the civil proceedings instituted by the  respondents in  the Delhi Court, it will add to the convenience  of  the parties  so  far  as  the production  of  records  and  even witnesses  before the Trial Court is concerned. [420 C,  421 G-H, 422 A]

JUDGMENT: ORIGINAL JURISDICTION : Transfer Petition No. 1 of 1977. Petition under section 25 of the Code of Civil Procedure. S.   N. Andley and Uma Datta for the Petitioners. S.   C. Mishra and Pramod Swarup for the Respondent. The Order of the Court was delivered by Goswami, J. This is a petition for transfer of a suit, which is pending on the original side of the Calcutta High  Court, under  section 25 as amended by the Code of Civil  Procedure (Amendments Act, 1976 (No. 104 of 1976). It  appears  the parties have been under severe  strain  for some little and there were litigations between them in Delhi Courts. The petitioners, who are all residents of Delhi and carry on business  in Delhi, are the tenants of the respondent’s  son in  Delhi.  The sole reason for tense friction  between  the parties  has arisen out of the petitioner civil  proceedings for perpetual injunction against the landlord’s  interfering with  their quiet, and peaceful possession of  the  tenanted premises.  A suit, being Suit No. 262 of 1974, was filed, by the petitioners in the Court of the Sub-Judge, Delhi,  with, the above mentioned prayer and it is said that the same  was

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dismissed for default. After  dismissal  of  the  suit  the  respondent  made   ail application  in the Delhi Court under section 85  read  with section  151  of-the  Code  of  Civil,  Procedure   (C.P.C.) claiming  Rs. 3000/- as, compensation from  the  petitioners for  malicious and vexatious prosecution of the civil  suit. In answer to that claim the petitioners filed their  written statement.  It is stated that the written statement filed in that   proceeding  contained  several   serious   defamatory allegations against the respondent whereby he was lowered in public esteem and reputation.  It is, on that account,  that the  respondent  instituted  Suit No. 690  of  1975  on  the original  side  of  the Calcutta  High  Court  claiming  Rs. 2,00,000 (Rupees two lakhs) as damages from the petitioners. We  are informed by Mr. Mishra, the learned counsel for  the respondent, that the respondent was not required to pay  any court fee when filing the, suit for damages for libel on the original side of the Calcutta High Court. 420 The petitioners having received the plaint in that suit from the  Sheriff  of Calcutta filed this petition  for  transfer under the amended section 25 C.P.C. That section reads  as follows               25(1)  "On  the application of  a  party,  and               after  notice,  to  the  parties,  and   after               hearing  such of them as desire to  be  heard,               the  Supreme  Court  may,  at  any  stage,  if               satisfied that an order under this section  is               expedient for the ends of justice, direct that               any  suit,  appeal  or  other  proceeding   be               transferred  from a High Court or other  Civil               Court  in one State to a High Court  or  other               Civil Court in any other State". This is a new power, in the widest terms, conferred on  this Court.   In  the  old section 25  C.P.C.  the  language  was different  and the power was of a restricted  character  and was  conferred on the State Government.  What  is  expedient for the ends of justice under section 25 C.P.C. will have to be judged upon the totality of facts and circumstances in  a given case. Mr. Andley, on behalf of the petitioners, submits that  this is a clear case of harassment of the petitioners in order to drag  them to the Calcutta High Court where  the  respondent had not to pay any court fee in instituting such a suit.  He also  submits that since the defendants reside and carry  on business  in  Delhi it will be a great handicap  to  defend such a suit in Calcutta.  He has also pointed out that there is  no  prima facie jurisdiction to institute this  suit  in Calcutta.   Even on the pleadings, ’according to him,  there is a clear lack of territorial jurisdiction.  He has pointed out  that  the cause of action averred in the  plaint  shows that the publication of the libel was in Delhi, which was in terms  stated in Para 8 of the Plaint, as being outside  the jurisdiction of the Calcutta High Court.  He submits that it will  be  near impossible for his clients to defend  such  a suit in Calcutta. Mr.  Mishra at the very outset submits that this Court  ’has no jurisdiction to entertain this application under  section 25 C.P.C. since the proceedings are pending on the original side  of  the Calcutta High Court which gave  leave  to  the respondent to institute the suit.  Clause 12 of the  Letters Patent for the Calcutta High Court, inter alia, states  that when  the  plaint discloses that only part of the  cause  of action for a suit is within the jurisdiction of the Calcutta High Court, leave has to be obtained from that Court  before

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instituting  the  suit.  It is stated that  leave  has  been obtained   from  the  Calcutta  High  Court  by  filing   an application  under clause 12 of the Letters Patent.  It  is, however,  admitted that leave was granted, ex parte, and  it will be open to the defendants to pray to the High Court for revocation of the leave. After  hearing Mr. Mishra at some length. we are not at  all impressed  by the aforesaid submission.  This Court  is  the highest Court of anneal under the Constitution from all  the High Courts in India.  Section 25 C.P.C., in terms,  confers a new power on this 4 2 1 Court which was earlier in the old section within the  State Government.    Section  25 C.P.C. provides that this  Court, if satisfied that an order    under the section is expedient for the ends of justice, may transfer   any  case  from  one High Court to another or from a civil court in one State  to a civil court in another State. Under Article 366(14) of the Constitution "High Court  means any  court  which  is  deemed  for  the  purposes  of   this Constitution to be a High Court for any State and includes-  (a)  any  Court  in the  territory  of  India               constitutedor       reconstituted under this Constitution as               aHigh       Court, and               (b)   any  other  Court in  the  territory  of               India  which may be declared by Parliament  by               law  to be a High Court for all or any of  the               purposes of this Constitution".               (See also S. 3(25) General Clauses Act). All High Court in India stand on the same footing so far  as this  Court  is  concerned and there is  no  basis  for  the submission that the suit cannot be transferred by this Court under  section  25  C.P.C  from the  original  side  of  the chartered  High Court to the Delhi High Court or  that  this Court has no jurisdiction to entertain such an  application. We are clearly of opinion that the submission is devoted  of substance and is rejected. Mr.  Mishra  next  contends that we should not at  all  be influenced  by the submission that the Calcutta  High  Court may not have territorial jurisdiction to entertain the suit. That  will be an objection which the defendants can take  up before  the Calcutta High Court which will decide  it  after hearing the parties.  That kind of a plea would not  furnish justification  for an application under section  25  C.P.C., says Mr. Mishra. It  cannot be said that if a particular suit, is  ex  facie- instituted  deliberately in a wrong court, it will not  have any  bearing whatsoever, on the question of  transfer.   The court may bear it in mind a,, an additional factor if  there is,  prima facie, on the pleadings sufficient  justification for  such a plea.  It is, however, not necessary for  us  to express  finally  on the question of  jurisdiction  in  this case.,That on   the   pleadings   there  is   a   strong possibility of the High Courtaccepting the      petitioners objection  to  territorial jurisdiction is also  a  relevant factor in the background of this case. On  the  merits, we are clearly of opinion  that  having  an overall  view  of the- case, the  relationship  between  the parties,   the   nature  of  the  suit,  as  well   as   the circumstances  in  which  the suit has  been  filed  in  the Calcutta  High Court, great hardship will be caused  to  the petitioners  in defending such a suit in Calcutta.   On  the other hand, the plaintiff has two sons in Delhi and be  had

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earlier  instituted  action in the Delhi court  against  the petitioners.   Convenience of the parties for a  smooth  and speedy trial will be more in Delhi than in Calcutta.   Since the  cause of action has arisen out of civil proceedings  in the 42 2 Delhi  court, it will add to the convenience of the  parties so  far as production of records and even  witnesses  before the trial court is concerned. Mr. Mishra also draws our attention to section 25(5)  C.P.C. and  submits that the plaintiff will be greatly  handicapped in several ways in being deprived of the procedure extant in Calcutta  High Court.  We should not,  therefore,  entertain the  petition, says counsel.  We do not find any  impediment under  section 25(5), C.P.C. in the matter of  entertainment of  the  petition of transfer by this  Court.   We  however, express  no  opinion about section 25(5) as it will  be  for the,  Delhi  High  Court  to deal with  the  matter  if  any question  is  raised  before it with regard  to  any  aspect appertaining to that section. This  is  a fit case where it is expedient for the  ends  of justice to transfer the suit No. 690 of 1975 on the original side of the Calcutta High Court from that High Court to  the Delhi High Court.  We, therefore, direct that the said  suit shall be transferred to the original side of the Delhi  High Court for disposal in accordance with law.  The petition  of transfer  is  allowed.   We, however, make no  order  as  to COSts". S.R. Petition allowed. 4 23